1. MUHAMMAD GUL, J.-The dispute, in this petition from the judgment of the Lahore High Court dated 21-6-1974, arises out of the transfer of a three storied residential Bungalow No. 5, Temple Road, Lahore, and is confined to its divisibility between the petitioner and respondent 1 herein both of whom are claimants in possession as allottees of different portions of the same.
2. The facts briefly are, that the house was initially held up to the level of the Settlement Commissioner to be indivisible and the whole of it was transferred to the petitioner who was in possession of the two upper stories and the respondent who was in occupation of the ground portion was entirely eliminated. The order is dated 29-11-1960. However, a revision by the respondent was accepted by the Chief Settlement Commissioner who held, inter alia, that the bungalow consisted of two independent residential units and constituted two houses within the meaning of section 2(4) of Act 28 of 1958, and that it is not possible to hold that the property in dispute constituted a single indivisible unit.
3. Writ Petition No. 88-R of 1966 taken by the petitioner against the above order of the learned Chief Settlement Commissioner, however, was accepted by the High Court on the ground that the petitioner was not afforded reasonable opportunity within the meaning of section 20(5) of Act 28 of 1958 to defend the order of the Settlement Commissioner in his favour.
4. After remand of the case by the High Court, the successor Chief Settlement Commissioner, after hearing both the parties, ride order dated 31-5-1966 again thx Settlement Commission and ordered the transfer bungalow to both the contestants in accordance with their respective possessions. He also issued certain directions about division of the compound, between the contestants and the disposal of surplus area, if any, "according to rules".
5. The petitioner again challenged the 'above order of the earned Chief Settlement Commissioner on the ground that the division of the house was without lawful authority, but the writ petition was dismissed.
6. In seeking leave to appeal, the petitioner's learned counsel submitted that the Chief Settlement Commissioner in holding that the Bungalow is divisible had not applied his mind properly as the subordinate authorities had done to hold the house to be indivisible. It was stressed that structurally the house was indivisible, because there was only one set of usual amenities and that the approach to the upper portion was through the veranda of the lower portion. Therefore, if the Bungalow is divided, it will be inconvenient to both the parties and there will be an invasion on privacy of both the parties. It was finally argued that the division contravenes the instructions of the Chief Settlement Commissioner to the effect that a Bungalow should, "as far as possible, be transferred as a complete unit except where it could be divided into more than one independent and complete Bungalow." In support of the argument reliance was placed on Abdul MajidKhan v.
7. The Chief Settlement Commissioner (P L B 1968 SC 124) and Shaukat Ali v. Settlement Commissioner (PLD 1973 S C124).
8. The two precedent cases are distinguishable on facts, anti do not advance the proposition canvassed by the petitioner's learned counsel. The outstanding fact in the instant case is that twice the matter has been examined each time by a different Chief :settlement Commissioner and each time he ban found the house to be divisible. It is now well settled proposition that it is within the special jurisdiction of the Settlement Authorities to determine whether or not a house is divisible and the High, Court in it, writ jurisdiction will not interfere unless on the face of it the' order t, arbitrary, fanciful or male fide, which definitely is not the case here. Nor there is any substance in the plea that the division will be inconvenient to the parties or that it would violate their privacy. The parties have beers living in the same house apparently peacefully for the last 27 years or so, and given title goodwill, there is no reason why they should not be able to do in future.
9. We see no merit in this petition, which is hereby dismissed.